ORS 656.260 explains how health care providers may become "certified" to
provide managed care as an MCO. ORS 656.260(1) provides, in part:

"Any health care provider or group of medical service providers may
make written application to the Director of the Department of Consumer
and Business Services to become certified to provide managed care to
injured workers for injuries and diseases compensable under this chapter."

"The director shall refuse to certify or may revoke or suspend the
certification of any health care provider or group of medical service
providers to provide managed care if the director finds that:

"(a) The plan for providing medical or health care services fails to
meet the requirements of this section.

"(b) Service under the plan is not being provided in accordance with
the terms of a certified plan."

Pursuant to ORS 656.260(4),

"[t]he director shall certify a health care provider or group of
medical service providers to provide managed care under a plan if the
director finds that the plan:

"(a) Proposes to provide services that meet quality, continuity and
other treatment standards prescribed by the director and will provide all
medical and health care services that may be required by this chapter in a
manner that is timely, effective and convenient for the worker.

"* * * * *

"(g) Authorizes workers to receive compensable medical treatment
from a primary care physician who is not a member of the managed care
organization, but * * * with whom the worker has a documented history of
treatment, if that primary care physician agrees * * * to comply with all the
rules, terms and conditions regarding services performed by the managed
care organization. Nothing in this paragraph is intended to limit the
worker's right to change primary care physicians prior to the filing of a
workers' compensation claim."

(Emphasis added.)

As petitioners contend, OAR 436-015-0070(2) prohibits MCOs from
considering a PCP's past practices when deciding whether to authorize a PCP to treat an
injured worker. Petitioners argue that, to be authorized under ORS 656.260(4)(g), a PCP
merely needs to agree "to comply with all the rules, terms and conditions regarding
services performed by the managed care organization." Petitioners contend that a "parade
of horribles" will result if OAR 436-015-0070(2) is applied literally to preclude an MCO
from ever denying authorization of a PCP because of the PCP's "past practices." For
example, petitioners point out that, under OAR 436-015-0070(2), a PCP previously
removed from an MCO for improper behavior (e.g., sexual abuse of a patient) who
subsequently agrees once more "to comply with all the rules, terms and conditions" must
be allowed to continue providing treatment. At oral argument, petitioners hypothesized
that the rule could therefore allow for a "revolving door," whereby unprofessional PCPs
continually violate the MCO's procedures but must be immediately reinstated by simply
agreeing once more to comply.

Petitioners also argue that OAR 436-015-0070(2) "exceeds or contravenes
specific, clearly expressed statutory policies and mandates" because, pursuant to ORS
656.260(4)(a), the MCO must formulate a plan that "proposes to provide services that
meet quality, continuity and other treatment standards prescribed by the director * * *."
(Emphasis added.) Additionally, petitioners argue that ORS 656.260(4) requires that the
director

"certify a health care provider or group of * * * providers to provide
managed care under a plan if the director finds that the plan:

(Emphasis added.) Petitioners contend that MCOs cannot meet "quality, continuity and
other treatment standards" and "exclude from participation" nonmember PCPs who have
violated treatment standards, while at the same time allowing PCPs who have violated
those treatment standards in the past to treat injured workers by agreeing to comply with
the same treatment standards that those PCPs previously violated. Petitioners cite Cook v.
Workers' Compensation Department, 306 Or 134, 138, 758 P2d 854 (1988), where the
court noted that, "[a]lthough the department has the authority to interpret the statutory
terms * * * that interpretation must be consistent with the policy underlying the legislative
enactment. An administrative agency may not, by its rules, amend, alter, enlarge or limit
the terms of a statute." Id. Petitioners contend that the director amended or altered ORS
656.260.

The Department of Consumer Business Services (the director) makes two
arguments in response to petitioners' rule challenge. First, the director contends that OAR
436-015-0070(2) is consistent with the worker-friendly policy underlying ORS
656.260(4)(g), viz., that the worker is afforded maximum freedom in maintaining
preexisting relationships with health care providers. In addition, the director argues that,
although MCOs are charged with providing quality care, they must also concern
themselves with patient choice and, if those two policies conflict, patient choice should
take precedence. The director's second argument is that nonmember PCPs never
participate in the plan, so OAR 436-015-0070(2) is consistent with ORS 656.260(4)(d),
which states that an MCO plan must "exclude from participation in the plan those
individuals who violate these treatment standards * * *." (Emphasis added.) We begin
with the director's first argument.

The relevant statutes, set out previously, require MCOs to provide quality
care while allowing a worker to be treated by a nonmember PCP who agrees to comply
with the MCO's rules, terms and conditions. "[W]henever possible the court should
construe together statutes on the same subject as consistent with and in harmony with
each other." Davis v. Wasco IED, 286 Or 261, 272, 593 P2d 1152 (1979). Furthermore,
"statutes dealing with the same subject matter must be read together and harmonized to
the extent possible." Newton v. Bank of the West, 183 Or App 347, 351, 51 P3d 1281
(2002).

ORS 656.260 was drafted primarily by the Governor's 1990 Workers'
Compensation Labor Management Advisory Committee. The committee was formed by
then-governor Neil Goldschmidt and its purpose was to provide a solution to the growing
costs of the state workers' compensation program. Report from The Governor's Workers'
Compensation Labor Management Advisory Committee, letter to Governor Neil
Goldschmidt, May 1, 1990. The committee formulated a legislative proposal, which
became Senate Bill (SB) 1197 (1990). Section 12 of SB 1197 eventually became ORS
656.260.

In its report, the committee addressed the issue of whether an injured
worker would be required to receive treatment solely from MCO providers. The report
stated:

"Concern was expressed during the meeting with the House and Senate
minority caucus that an individual who is under the care of a primary care
physician shouldn't be forced to accept a managed care organization
medical provider upon referral for a potentially life threatening surgical
procedure.

"The committee shared the concern expressed, particularly in situations
similar to that given in the example, but noted that the director is given
authority * * * to propose any rule necessary to provide quality health care
to injured workers. It is the Committee's belief that the director would have
the authority to develop rules to address such situations and, further, had
the authority to refuse to certify, revoke or suspend the certification of any
managed care plan failing to meet the requirements of any rules proposed
under authority of the Act."

Report from The Governor's Workers' Compensation Labor Management Advisory
Committee, May 3, 1990 (emphasis added). This excerpt indicates that patient choice and
quality of care are intertwined and that the director could propose rules, such as OAR
436-015-0070(2), that would ensure patient choice and therefore quality of care to injured
workers. Although this statement refers to an instance involving emergency medical
treatment, it provides insight into the way that the drafters intended quality of care and
patient choice to intersect. In other words, when the drafters were talking about patient
choice, they were necessarily referring to quality care. The above-quoted statement
further indicates that the intent of the legislation was to give broad authority to the
director to correct situations where patient choice was restricted. OAR 436-015-0070(2)
does exactly what the committee intended: it provides for quality care because it allows
patients to choose to be treated by their PCPs and keeps MCOs from interfering with that
choice based on a PCP's past practices.

Cecil Tibbetts, a member of The Governor's Workers' Compensation Labor
Management Advisory Committee, explained that, "[w]e have allowed the people who
have a family physician, a trusted physician that they work with, that they don't have to go
to the managed care organization. They can go to that family physician." Tape
Recording, Special Committee on Workers' Compensation, SB 1197, May 3, 1990, Tape
2, Side A (statement of Cecil Tibbetts).

The committee also discussed quality of care and patient choice in its
summary of section 12 of SB 1197:

"The plan must include an adequate number of each class of medical
service providers to give the worker flexibility to choose medical service
providers from among those individuals who provide service under the
plan. Requires that the MCO provide methods of peer and service
utilization review to prevent inappropriate or excessive treatment. The plan
must provide for excluding from participation those individuals who violate
these treatment standards. * * *

"Workers who elect prior to or at the time of making a claim may receive
medical care from their primary care physician * * *. * * * The primary care
physician must agree to refer the worker to the managed care organization
for any physical therapy or other specialized treatment. The physician also
agrees to comply with the rules, terms and conditions regarding medical
services performed by the MCO."

Although we have not yet completed our analysis of the director's first
argument, the second argument regarding PCP "participation" is relevant at this point in
the analysis, given the committee's summary of section 12. The director's second
argument is that it does not conflict with ORS 656.260(4)(d) because PCPs do not
"participate" in the MCO plan.

Petitioners contend that the term "plan," as it is used in the statutes, "refers
more generically to the proposed structure and operational guidelines by which the MCO
will comply with all of the criteria for Department certification." (Emphasis in original.)
Petitioners acknowledge that participants in the plan include MCO members who enter
into contracts with the MCO. However, petitioners argue that

"such plans must also include within themselves provision[s] for
'participation' by non-panel providers, i.e. preexisting PCPs who agree to
abide by the same 'terms and conditions * * *.' All of the care provided by
an MCO is provided pursuant to its 'plan' * * *. That includes the mandate
to police and enforce its managed care procedures and standards for all such
care by excluding non-complaint 'participants' * * *."

(Emphasis in original.) Petitioners contend, therefore, that "[t]he Department's
interpretation of nonpanel PCP care as something that is in the plan, but not of the plan, is
untenable."

ORS 656.260(4)(d)(E) provides that "the managed care organization
monitors and enforces its contracts with participating providers * * *." (Emphasis
added.) Similarly, OAR 436-015-0030(5)(a) provides that the MCO shall provide
"[c]opies of contract agreement(s) or other documents signed bythe MCO and each
participating medical service provider/health care provider representative which verify
membership[.]" (Emphasis added.) Finally, ORS 656.260(4)(g) provides that the director
shall certify an MCO that provides care under a plan that allows workers to receive
treatment "from a primary care physician who is not a member of the managed care
organization * * *." (Emphasis added.)

The director argues, and we agree, that, unlike nonparticipant nonmember
PCPs, medical service providers who are members of, and participate in, the MCO plan
are participants because participants verify their membership in the MCO by entering into
contracts with the MCO. The difficulty with petitioners' argument is that, although the
plan must provide for nonmember PCPs, that does not mean that nonmember PCPs
participate in the plan. The PCPs at issue here are not members and do not enter into
contracts with the MCOs; thus, those PCPs do not participate in the plan.

Assuming arguendo that nonmember PCPs do participate in the MCO plan,
we would still hold that the contested rule is consistent with ORS 656.260(4)(d), which
provides that MCOs must "exclude from participation in the plan * * * individuals who
violate these treatment standards * * *." (Emphasis added.) ORS 656.260(4)(d) uses the
present tense of the verb "violate." The statute does not say that individuals who "have
violated" the treatment standards must be excluded. OAR 436-015-0070 comports with
ORS 656.260(4)(d) because the rule requires the PCP to "[a]gree to comply with all terms
and conditions regarding services governed by the MCO," and it requires the MCO to
refrain from refusing to authorize a PCP on the basis of past practices. "The use of a
particular verb tense in a statute can be a significant indicator of the legislature's
intention." Martin v. City of Albany, 320 Or 175, 181, 880 P2d 926 (1994). Therefore,
even if we concluded that nonmember PCPs participated in the MCO plan, we would
hold that OAR 436-015-0070 is consistent with ORS 656.260(4)(d) because ORS
656.260(4)(d) is worded in such a way that it can refer only to exclusions for conduct.

In sum, we agree with the director that nonmember PCPs are not
participants in MCO plans. Therefore, there is no conflict between the requirement that
MCOs "exclude from participation in the plan those individuals who violate these
treatment standards" and the requirement that MCOs authorize an injured worker to
receive treatment from a PCP, regardless of that PCP's past practices.

Turning back to the director's first argument that the contested rule is
consistent with the statutory mandates that require MCOs to provide quality care, we
continue our analysis of legislative history. Tibbetts further addressed quality of care and
patient choice when he responded to questions from legislators regarding whether injured
workers could obtain treatment from chiropractors:

"[J]ust based on my own relationship with my family physician, if I go to a
chiropractor-- in fact, I've done this before -- and the chiropractor's helping
me, and then I go back to my family physician and say 'I want to be referred
back to this guy because he's helping me,' my family physician is going to
do that. I have a relationship with him and I trust him or I wouldn't be
there. On the other hand, the employee that says, 'I'll go to the managed
care organization,' the chiropractors are going to be inside that system * * *.
So if you go on that track, you're not going to have a problem with the
attending physician; if you go on the other track and say 'I don't trust the
managed care system, I want to go to my family physician,' then my feeling
about that, very strongly, is your relationship with your family physician. I
mean, I'm not going to have a family physician who doesn't like
chiropractors if I think a chiropractor's important to me. The choice of my
family physician is going to be a person who understands the value of
chiropractors * * *. We're not trying to cut them out of the system. So we
have two tracks that you can go on and our opinion, in both tracks, [is that]
you are going to be able to obtain this care if you need it."

Tape Recording, Special Committee on Workers' Compensation, SB 1197, May 3, 1990,
Tape 2, Side A (statement of Cecil Tibbetts).

Ed Redman, also a member of the committee, emphasized patient choice:

"If you have a family physician that you have been going to for whatever
treatment and you become injured on the job, * * * you can continue going
to that family physician for your on the job injury and you can change
family physicians. You don't have to stay with that same one forever if you
wish to change family physicians for whatever reason -- if you move or
anything -- any other reason -- the physician moves -- you have the
authority to change family physicians as often as you wish to. So we're not
stating that you have to be with this physician for many years. It's just that
you have established some type of patient-physician relationship with that
individual and that individual then is your attending physician."

Id. (statement of Ed Redman).

In response to concerns raised by a legislator regarding how long a patient
must be treated by a physician in order for that physician to qualify as the patient's PCP,
Tibbetts explained:

"We have, in the act, provided that you can't change physicians during [the]
pendency of a claim. So we aren't providing doctor shopping in that
situation, but we are trying to provide the maximum freedom of choice and
we're balancing the need for control with the need for freedom of choice."

Id. (statement of Cecil Tibbetts). Petitioners contend that that statement supports their
argument that the contested rule reflects "no concern at all for 'balancing.'" The context
of Tibbetts's statement, however, does not support petitioners' argument that patient
choice must be balanced with MCO control. Rather, Tibbetts was speaking about striking
a balance between a patient's need to change PCPs and the requirement that a patient may
not change physicians during the pendency of a claim.

The legislative history reflects the intent to intertwine quality of care with
patient choice and the view that one facet of ensuring quality care involves allowing
patients to receive treatment from PCPs. Furthermore, it is clear that the director is
charged with promulgating rules that further the legislative intent to provide quality of
care by ensuring that patients' freedom of choice is not impaired. The policy behind OAR
436-015-0070(2) was explained in the Department of Consumer and Business Services
Workers' Compensation Division Bulletin No. 319 (rev) issued on August 18, 2000. The
bulletin states that its purpose

"is to clarify public policies regarding MCOs' reliance on PCPs' past
practices as a basis to deny authorization for PCPs to provide ongoing
medical services to enrolled workers. Because the workers' compensation
law does not provide for denial of authorization for past practices, the
director has determined that such denial is not appropriate."

(Emphasis added.) OAR 436-015-0070(2) was thus promulgated to provide quality
health care to injured workers by ensuring that MCOs could no longer rely on PCPs' past
practices as a basis to deny patient choice.

We thus conclude that OAR 436-015-0070(2) does not conflict with the
statutory mandates directing MCOs to provide quality care and "exclude from
participation in the plan * * * individuals who violate these treatment standards * * *."
ORS 656.260(4)(d). This is particularly evident after examining the Report from The
Governor's Workers' Compensation Labor Management Advisory Committee in which
the committee explained that the purpose of giving the director authority "to propose any
rule necessary to provide quality health care to injured workers" is to avoid a situation
where a worker under the care of a PCP is forced to receive treatment from an MCO.
Furthermore, nonmember PCPs do not participate in the MCO plan, so the contested rule
is consistent with ORS 656.260(4)(d), which states that an MCO plan must "exclude from
participation in the plan" those "individuals who violate these treatment standards." In
the alternative, we find that the statute is prospective because it uses the present tense
verb "violate." Thus, even if PCPs are participants in the MCO plan, prohibiting MCOs
from denying authorization of a PCP based on past practices is consistent with legislative
intent.

"(4) The director hereby is charged with duties of administration,
regulation and enforcement * * *. To that end the director may:

"(a) Make and declare all rules and issue orders which are reasonably
required in the performance of the director's duties."

Similarly, ORS 656.260(19) provides that "[t]he director shall conduct such * * *
administrative oversight in regard to managed care as the director deems necessary to
carry out the purposes of this chapter."

2. "In interpreting administrative rules, we apply the same principles of
interpretation that are used to construe statutes. Thus, we first examine the text and
context of the applicable rules." Haskins v. Palmateer, 186 Or App 159, 166, 63 P3d 31
(2003), rev den, 335 Or 510 (2003) (citations omitted).